Bombay High Court
New India Insurance Co. Ltd., Thr Its … vs Sunanda Subhash Gaikwad And Ors on 23 June, 2025
2025:BHC-AUG:15780
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1321 OF 2021
WITH
CIVIL APPLICATION NO.7104 OF 2019
WITH
CIVIL APPLICATION NO.5348 OF 2021
New India Insurance Company Ltd. }
Through It's Branch Manager, }
Branch Office, Sathe Chowk, }
Jalna Raod, Beed, }
Tq. & Dist. Beed. }
Through its Divisional Manager/ }
Authorized Signatory, }
Mahesh Auto Compound, }
Adalat Road, Aurangabad, }
Dist. Aurangabad. } ... Appellant
(Original Respondent No.3)
Versus
1. Sunanda W/o. Subhash Gaikwad, }
Age : 27 years, Occu. : Household, }
2. Anisha D/o. Subhash Gaikwad, }
Age : 11 years, Occu. : Education, }
3. Atish S/o. Subhash Gaikwad, }
Age : 8 years, Occu. : Education, }
4. Akansha D/o. Subhash Gaikwad, }
Age : 6 years, Occu. : Education, }
(Respondent Nos.2 to 4 being Minor }
U/g of their mother i.e. respondent No.1) }
5. Suryabhan S/o. Kanakappa Gaikwad, }
Age : 59 years, Occu. : Agriculture, }
6. Laxmibai W/o. Suryabhan Gaikwad }
Age : 52 years, Occu. : Household, }
-2- FA.1331.2021
All R/o. Imampur Road, Barshi Naka, }
Beed, Dist. Beed. }
7. Shaikh Sattar S/o. Shaikh Sadaroddin, }
Age : Major, Occu. : Owner, }
R/o. Kazi Nagar, Balepeer, }
Nagar Road, Beed, }
Tq. & Dist. Beed. }
8. Shaikh Taher S/o. Shaikh Munna, }
Age : Major, Occu. : Driver, }
R/o. Mohammadiya Colony, Beed, } (.... Deleted)
Tq. & Dist. Beed. }
... Respondents.
(Resp.Nos.1 to 6 - Orig. claimants
Respo. Nos. 7 & 8 - Orig. Resp. Nos.1 & 2)
......
Mr. S. R. Bobade, Advocate for Appellant.
Mr. Santosh S. Jadhavar, Advocate for Respondent Nos.1 to 6 in
appeal and for Applicants in CA/5348/2021.
Mr. A. B. Hawale, Advocate for Respondent No.7 (Absent).
Respondent No.8 deleted.
......
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 11 JUNE 2025
PRONOUNCED ON : 23 JUNE 2025
JUDGMENT :
1. Appellant – Insurance Company has hereby, assailed
the impugned judgment and order dated 02.01.2019 passed by
learned Motor Accident Claims Tribunal, Beed in M.A.C.P. No. 21 of
2018 by invoking provisions under section 173 of the Motor
Vehicles Act, 1988.
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FACTS GIVING RISE TO THE CLAIM FOR TRIAL ARE AS UNDER
2. Deceased, husband of claimant no.1, father of claimant
nos.2 to 4 and son of claimant Nos. 5 and 6, was proceeding on his
motorcycle from Beed towards Parali i.e. on his correct side of the
road. Around 6:30 to 7:00 p.m, when he reached Mainda Phata, a
Toyota Qualis Jeep bearing No. MH-26-K-0777 coming from
opposite direction i.e. from Parali towards Beed, was being driven
in rash and negligent manner and gave dash to the motorcycle of
deceased, causing fatal injuries and ultimately resulting into death.
Hence, on report being lodged, initially crime was registered
bearing Crime No. 283 of 2017 against respondents for offence
punishable under sections 304A, 279 and 338 of Indian Penal
Code. On completion of investigation, charge sheet was filed, heirs
of deceased Subhash set up motorcycle accident claim bearing
M.A.C.P. No. 21 of 2018 claiming compensation to the tune of
Rs.44,50,000/-.
3. Learned Motor Accident Claims Tribunal issued notice
on respondents, who were impleaded including present appellant
Insurance Company as respondent no.3 to answer the claim.
Evidence was permitted to be adduced, which was analyzed and
after hearing each of the side, learned Tribunal partly allowed the
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claim directing respondent nos.1 to 3 to jointly and severally pay
the awarded compensation.
Aggrieved by the same, Insurance Company respondent
No.3 has come up in appeal.
4. Learned counsel for Insurance Company would point
out the factual background of the case, giving rise to accident claim
bearing M.A.C.P. No. 21 of 2018. Occurrence of motor vehicle
accident and death of Subhash a motorcycle rider, is not disputed.
However, in appeal Insurance Company has taken exception to the
impugned judgment and order of Tribunal on following grounds :-
Firstly, there was contributory negligence also on the
part of deceased. Secondly, no convincing evidence that the
offending vehicle Toyota Qualis jeep which was insured with
respondent no.3 to be involved or responsible for the accident or
mishap as report was lodged about dash being given by unknown
vehicle. Thirdly, claimants being already beneficiaries under
Workmen Compensation Act, learned Tribunal ought not to have
awarded compensation at all in the second claim. Lastly, learned
counsel would submit that, learned Tribunal when having held that
there was contributory negligence, ought to have fixed 50%
liability on deceased also while computing the compensation
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entitled by the claimants. For all above reasons, impugned
judgment is sought to be assailed and set aside.
5. Per contra, learned counsel for claimants would
support the findings and conclusion drawn by learned Motor
Accident Claims Tribunal by submitting that all factors and
essential requirements are scrupulously dealt and decided by the
learned trial court. Arguments advanced by each of the side are
correctly appreciated and judgment being evenly balanced, it is his
submission that, the same may not be disturbed or interfered with.
6. Heard each of the side. Perused the record made
available before the Tribunal and re-appreciated and reanalyzed
the evidence. Before the Tribunal following issues came to be
settled and drawn :-
“(1) Do the claimants prove that on 04.11.2017 while deceased Subhash
Suryabhan Gaikwad was proceeding to his village Sonna Khota from Beed
on motorcycle No. MH-23-AQ-7313 by Beed – Parali Road, at about 6:30
to 7.00 p.m. a vehicle accident took place at Mainda Phata in the vicinity of
village Mainda due to rash and negligent driving of driver of Toyota Qualis
Jeep no. MH-26-K-0777 wherein he died of injuries sustained in the
accident.
(2) Do respondent no.1 and 2 prove that the accident took place due to
wrong of the deceased ?
(3) Does respondent no.3 proves that the accident took place due to
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contributory negligence of the deceased?
(4) Does respondent No.3 further proves that the driver of Toyota
Qualis Jeep No. MH-26/K-0777 was not holding valid and effective driving
licence at the time of accident, therefore, the insured has breached the
terms and condition of insurance policy ?
(5) Does respondent No.3 further proves that the petition is bad for non-
rejoinder of necessary party i.e. owner and insurer of Motorcycle No. MH-
23/AQ-7313?
(6) Whether the claimants are entitled for compensation ? If yes, what
should be the quantum and from whom?
(7) What order and award ?”
7. In support of claim petition, though wife of deceased
Subhash PW1 namely Sunanda gave her evidence at Exh.17,
admittedly she is not an eye witness to the alleged accident.
Therefore, on the aspect of accident, rash and negligent driving,
her evidence is of no avail. Report of occurrence seems to be at the
instance of Laxman Gaikwad on 05.11.2017, but apparently from
his statement it is clear that, he has received telephonic
information about deceased Subhash meeting with an accident and
he consequently reaching there i.e. after the accident. He merely
undertook the exercise of shifting his cousin to hospital. Thus, even
his evidence is formal in nature on above aspect.
-7- FA.1331.2021 8. Claimants have adduced evidence of C.W.2 a
Contractor / builder, his evidence is on the point of employment
and earnings of deceased. Main witness on behalf of claimant is
Dnyneshwar Rambhau Mitkar (C.W.3) and his evidence is at
Exh.39 and its substance is that on 04.11.2017, he had been to
Wadwani for his personal work and while returning back on
motorcycle over Parali to Beed road, around 6:30 to 7:00 p.m., he
claimed to have seen a motorcycle proceeding ahead with him in
the vicinity of field of Rajabhau Ghumare and also claims to have
seen Qualis vehicle coming from opposite direction in excessive
high speed, its driver losing control and going to the wrong side
and giving dash to the motorcycle. He stated on affidavit about
Qualis vehicle being halted at some distance and further according
to him, in the headlight of his motorcycle when he saw the rider of
the motorcycle, he realized injured to be his cousin. He also stated
on affidavit that, he questioned the Driver and he gave his name as
Shaikh Taher Shaikh Mannan and he has also seen vehicle number
of the Qualis Jeep as MH-26-K-0777.
9. Above witness is subjected to cross. In initial cross,
there is questioning on the point of relationship with deceased and
he is asked on which directions he was proceeding, whether there
was traffic on the road, whether at the time of accident it was dark
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or not. Suggestion given that deceased himself went and dashed on
the jeep denied by this witness. Then he is questioned whether he
made telephonic call to police and he answered that he did not, but
made phone call to father-in-law of Subhash. Rest all suggestions
are denied.
10. The tenor of above cross examination clearly shows
that, presence of this witness is not seriously challenged. The
answers given by this witness does not render his evidence
doubtful or about he being not present at the scene of occurrence.
No doubt, he was not diligent in himself reporting the occurrence to
police, in spite of being eye witness, but that itself would not be a
ground to raise suspicion over his belated statement or affidavit.
Answers given by him in very cross, probabilise his presence at the
spot and as such there is no reason to doubt whether he is an eye
witness or not. Therefore, the arguments raised before this court
on this count, has no merit.
11. Much emphasize is laid by the learned counsel for
appellant on the aspect of initial report to police about accident to
be by unknown vehicle. Statement of Laxman Gaikwad informant
is apparently about accident by unknown vehicle. However,
evidence of witness Dnyaneshwar Mitkar for above discussed
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reasons, cannot be overlooked. On affidavit he has stated that on
the next day of accident i.e. on 05.11.2017 after the last rituals he
claims to have passed information about the offending vehicle to
father-in-law of deceased namely Suryabhan Gaikwad and others.
Therefore, on the strength of available material, there is no reason
to doubt that offending vehicle Qualis Jeep bearing No.MH-26-K-
0777 was involved in the accident.
12. On careful study of spot panchanama Exh.19, the
directions in which both vehicles were proceeding and factual
situation can be visualized. Learned Tribunal has already held that
claimants failed to prove that driver of the offending vehicle Qualis
was wholly and solely responsible. Reasons to record such findings
are reflected in paragraph nos. 12 and 13. On analyzing the above
observations and comparing its contents of the spot panchanama,
no contrary view than the one taken by Tribunal would emerge. It
is not unreasonable to expect a driver of four wheeler vehicle to be
more alert and diligent towards the traffic on the road. However,
even deceased seems to be some extent responsible for not
carefully riding the motorcycle. There is damage to both vehicles
and as such there is reason to hold that even motorcycle rider is
partly responsible. In such situation and in absence of any material
to show that Qualis vehicle left its correct side and came
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completely the wrong side and gave dash, it is unsafe to fix entire
responsibly on four wheeler vehicle. Therefore, there is reason to
hold that, there is contributory negligence on the part of deceased
also but not to the extent to which driver of Qualis vehicle is
responsible. This Court has noticed that learned Tribunal has fixed
70% and 30% responsibility respectively. There is nothing unusual
in ascribing such percentage of negligence. Learned counsel for
appellant would strenuously submits that, Tribunal ought to have
held 50% of liability on deceased also. However, there is no
material to hold that both, driver of the Qualis vehicle and
deceased to be equally responsible. In view of peculiar facts and
circumstances of the cases, no fault can be found on the part of the
Tribunal for holding Qualis vehicle responsible to the extent of 70%
and remaining negligence to deceased.
13. Another ground pressed into service by learned
counsel for appellant is that claimants are already beneficiaries of
compensation under Workmen’s Compensation Act and as such
according to him, claimants are precluded from securing dual
benefits. The Hon’ble Apex Court in the case of Ramchandra v.
Regional Manager United India Insurance Co. Ltd., reported in AIR
2013 SC 2561, while deciding Civil Application No.8725 of 2012,
the Hon’ble Apex Court held that, the claimants are entitled for the
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amount of compensation even if they are previously beneficiaries
of some amount under Workmen’s Compensation Act. For ready
reference the observations, which are relevant and reflected in
paragraph no.20 of the judgment is reproduced as under :
“20. The claimant / Appellant is surely entitled to the amount of
compensation over and above the Workmen’s Compensation Act in
view of the ratio of the decisions referred to hereinbefore. The rider
no doubt is that the statutory liability cannot be more than what is
required under the statute under Section 95 of the Motor Vehicles Act
which cannot bind the parties or prohibit them from contracting or
creating unlimited or higher liability to cover wider risk and the
insured is bound by the terms of the contract specified in the policy in
regard to unlimited or higher liability as the case may be. Thus, it is
although correct that limited statutory liability cannot be extended to
make it unlimited or higher, it is also manifestly clear that insofar as
the entitlement of the claimant/deceased cleaner of the vehicle is
concerned, the same cannot be restricted to the compensation under
the Workmen’s Compensation Act and is entitled to compensation
even under the Motor Vehicles Act which will depend upon the terms
and conditions of the policy of insurance.”
Having above point being settled by the Hon’ble Apex
Court and here except admission in cross, there is no other distinct
material regarding how much amount claimants have received
under so called scheme of Workmen’s Compensation, it would be
unjust to disentitle them from receiving any compensation under
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14. Perused the judgment impugned herein. Issues are
framed as are arising on the basis of contentions raised by the
parties. Available evidence is appreciated in the manner required
under law. No fault can be found in appreciation of the same.
Hence, there being no infirmity or patent perversity, this court
does not find reasons to interfere. Hence, the following order is
passed :-
ORDER
(i) The appeal stands dismissed.
(ii) In view of dismissal of the appeal itself, Civil
Application No. 5348 of 2021 filed by the original claimants for
withdrawal of amount is allowed in terms of prayer clause “B”.
(ii) Civil Application No.7104 of 2019 also stands disposed
off.
(ABHAY S. WAGHWASE, J.)
Tandale